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A previous attempt to make standing in medians illegal in Albuquerque – thus severely restricting panhandling – was ruled unconstitutional by a federal judge.
Now, Mayor Tim Keller’s administration is proposing a pedestrian safety ordinance rewrite that it claims walks the fine line between protecting people on foot and in cars without restricting free speech.
The ordinance specifically bars individuals from standing in or entering street and highway travel lanes unless they are “legally crossing.” It also prohibits using or occupying medians on 30 mph or faster roads where there is not a flat surface at least 4 feet wide.
“Due to the … large number of pedestrian/vehicle-involved crashes, Albuquerque seeks to address general pedestrian safety concerns, and to prevent further unnecessary deaths and injuries resulting from pedestrian occupation of medians by amending the Traffic Code to disallow occupancy by pedestrians in medians,” Keller wrote in a September memo to Albuquerque City Council President Isaac Benton.
Benton and Councilor Brook Bassan are sponsoring the legislation on the administration’s behalf.
The bill deletes some language from the pedestrian safety ordinance, including a section that prohibited people in cars from engaging “in any physical interaction or exchange with a pedestrian” and another section that generally banned occupation of areas within 6 feet of highway entrance and exit ramp travel lanes.
The American Civil Liberties Union of New Mexico, on behalf of multiple plaintiffs, successfully sued the city of Albuquerque over the pedestrian safety ordinance it adopted in 2017. Judge Robert Brack of U.S. District Court in Albuquerque ruled in 2019 that the ordinance violated free speech protections because it was “not narrowly tailored to meet the City’s interest in reducing pedestrian-vehicle conflicts.”
The U.S. 10th Circuit Court of Appeals last year upheld Brack’s ruling.
The court explained that the city was “unable to establish that the ordinance does not burden substantially more speech than necessary to further its interest in pedestrian safety” and, in addition, “has almost completely failed to even consider alternative measures that restrict or burden the speech at issue less severely than does the ordinance.”
The appeals court also noted the plaintiffs’ argument that city accident reports failed to support the need for several of the ordinance’s provisions, as they “actually belied any assertion that pedestrian presence near highway ramps or on medians, or pedestrian involvement in physical exchanges with vehicles occupants, gave rise to significant safety concerns.”
Keller’s administration said it heeded that ruling.
A city spokesman said the new proposal represents “common-sense regulations” and is responsive to specific Court of Appeals’ concerns.
“Most significantly, the City limited the scope of the new ordinance,” spokesman Babaak Parcham said in a written statement. “The ordinance only prohibits people from standing on dangerous medians that are four feet or narrower. This change is designed to protect both pedestrians and the travelling public, while also allowing for protected speech.”
Violations would be considered petty misdemeanors punishable by up to a $100 fine, though the ordinance gives police discretion to issue a warning in lieu of citation or arrest. It also names the Albuquerque Community Safety Department as the “preferred” responder in such cases. ACS is a relatively new public safety option that responds to calls with behavioral health professionals and outreach workers.
ACLU of New Mexico’s executive director said the organization is reviewing the new proposal.
“We are still analyzing the bill and the City’s actions for consistency with the Court’s order and how the city council votes,” Executive Director Peter Simonson said in a written statement. “We are committed to making sure that people in our city do not suffer criminal legal consequences for taking part in life-sustaining activities that are protected by basic constitutional rights.”
Benton said he believes the new version can withstand a potential legal challenge. He said it does not specifically target people who are homeless, as it would also apply to people fundraising or otherwise using medians.
“If they’re doing it on a 2- or 3-foot-wide median in heavy traffic, that’s just not a safe situation,” he said.
In a separate effort, one Bernalillo County official said he’s exploring a pedestrian safety ordinance for unincorporated areas of the county not bound by Albuquerque city regulations. He said he hopes to move a bill later this month.
County Commissioner Walt Benson said he is piggy-backing on a recently proposed county ordinance to ban camping in arroyos, something officials said was intended to keep people from getting swept up by fast-moving water during storms.
“We have way more people dying from pedestrian deaths than flash floods, so I think this is warranted,” Benson said.
Editor’s note: This story was corrected to reflect the status of Bernalillo County’s proposal to ban camping in arroyos.